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Comprehensive Health of Planned Parenthood Great Plains v. Williams

United States District Court, W.D. Missouri, Central Division

November 3, 2017

COMPREHENSIVE HEALTH OF PLANNED PARENTHOOD GREAT PLAINS, et al., Plaintiffs,
v.
RANDALL W. WILLIAMS, M.D., in his official capacity as Director of the Missouri Department of Health and Senior Services, ., Defendants.

          ORDER AND OPINION DENYING PLAINTIFS' MOTION FOR TEMPORARY RESTRAINING ORDER

          BETH PHILLIPS, JUDGE, UNITED STATES DISTRICT COURT.

         Plaintiffs have filed suit challenging regulations governing facilities that administer medication abortions. One of those regulations requires that a facility have a “complication plan” approved by the Missouri Department of Health and Senior Services (“DHSS”). Plaintiffs seek a temporary restraining order to prohibit enforcement of the requirement of a complication plan for their facility in Columbia, Missouri, (“the Columbia clinic”), contending that the requirements for a complication plan impose an undue burden on women's right to an abortion.

         Defendants contend that Plaintiffs have not tried to submit a compliant plan, nor have they presented evidence establishing the extent of any burdens women would experience if the Columbia clinic cannot comply. For the following reasons, Plaintiffs' Motion for a Temporary Restraining Order, (Doc. 4), is DENIED.

         I. BACKGROUND

         There are two types of abortions: surgical abortions, and medication abortions. Medication abortions are only possible in the early stages of pregnancy, and involve the administration of two medications. The first must be administered in a health facility or clinic, but the second is taken 24-48 hours later and can be taken by the woman anywhere, and is often taken by the woman in her home.

         In the summer of 2017, the Missouri Legislature was called into a special session, [1] and amended section 188.021 of the Revised Missouri Statutes. Subsection 2 regulates medication abortions by prohibiting doctors from prescribing or administering the medications “without first obtaining approval from [DHSS] of a complication plan from the physician for administration of the drug or chemical to any patient.”[2] The complication plan must “include any information deemed necessary by the department to ensure the safety of any patient suffering complications as a result of the drug or chemical in question.” Subsection 3 allows DHSS to “adopt rules, regulations, and standards governing complication plans to ensure” patient safety. A physician who violates this statute may be charged with a Class A misdemeanor, and the facility may face a penalty as well. Mo. Rev. Stat. §§ 197.220-.230.

         The amendments were due to go in effect on October 24, 2017. On October 2, 2017, DHSS issued a memorandum announcing that it would be announcing emergency rules establishing the requirements for complication plans that would go into effect on November 3, and presenting a summarized preview of those requirements. (Doc. 1-4.) The memorandum requires that the complication plan provide for a board-certified or board-eligible OB/GYN to be “available twenty-four hours a day, seven days a week to treat complications related to abortion drugs prescribed or administered.” Further, either the facility or the physician who prescribes or administers the drug must have a written contract with the OB/GYN or group of OB/GYNs. In addition, the OB/GYN must “[p]ersonally treat all complications, including those requiring surgical intervention” and must “[a]ssess each patient individually, and shall not, as a matter of course, refer all patients to the emergency room or other facilities or physicians unless the patient is experiencing an immediately life-threatening complication.” If the physician who prescribes or administers the drugs is an OB/GYN, the physician or facility must have a “written agreement with an OB/GYN or group of OB/GYNs to ensure the required 24/7 coverage when the physician is unavailable to treat complications.”

         Between October 16 and October 24, Plaintiffs submitted three different complication plans to DHSS for approval. All three of these plans were combined plans, intended to apply to the Columbia clinic and the clinic in Kansas City. In addition, discussions between Plaintiffs and DHSS confirmed that the OB/GYN who would “personally treat” patients in Columbia would be located in Kansas City, making the ability to provide “personal” treatment problematic. All three of the joint proposals were denied.

         DHSS promulgated its emergency regulation on October 24. (Doc. 1-2, pp. 6-9.)[3] The regulation tracks the memorandum's provisions. In addition, it specifies that “[e]ach abortion facility shall ensure that no drug is prescribed or administered via its facility until the facility has received written approval from the Department of the complication plan of the physician who will prescribe or administer the drug.”

         Plaintiffs proposed a complication plan specific to the Kansas City facility on October 26, but it was rejected by DHSS. Plaintiffs proposed a second Kansas City-specific plan on October 27, and this one was approved. Plaintiffs have not proposed a plan specifically for the Columbia clinic. However, they did submit a “Patient Transfer Agreement” with a local hospital that “provides for patients to be admitted to the hospital if necessary.” (Doc. 4-1, ¶ 9.) The agreement also establishes a protocol to ensure continuity of care, including the procedure for communication between the entities, the transfer of patient records, etc. (Doc. 4-1, pp. 27-29.) DHSS deemed this insufficient to constitute a complication plan, and the Court easily observes that the Patient Transfer Agreement makes no mention about the availability of an OB/GYN.[4]

         Plaintiffs' Complaint asserts three claims, but they rely only on Count I for the TRO. Count I alleges that the regulation violates the Due Process Clause because “[i]t is an unnecessary health regulation that has the purpose and effect of imposing an undue burden on women's right to choose abortion.” (Doc. 1, ¶ 54.)

         A hearing was held on November 2, 2017, and the parties announced the only evidence they wished to present was contained in the affidavits submitted prior to the hearing. In addition to the facts already discussed, those affidavits also establish that in 2015 the Columbia clinic attempted to comply with Missouri statutes (the enforcement of which have since been enjoined; see footnote 1, supra) requiring that doctors performing abortions have admitting privileges. At that time, Plaintiffs found “two physicians with current hospital privileges who seriously considered providing services at the Columbia health center. However, because of the hostile political environment in Missouri toward abortion, those physicians were unwilling to subject themselves and their families to the scrutiny and potential harassment that comes with providing abortion[s].” (Doc. 4-2, ¶ 12.) An attempt was also made “to secure backup physicians with local hospital privilege who would be willing to enter into an agreement . . . to admit patients to the hospital on behalf of Comprehensive Health's physician.” A “handful” of doctors expressed willingness, and three of those doctors were OB/GYNs - but none of them agreed to a contract “because of fear of harassment or professional consequences.” (Doc. 4-2, ¶ 13.)

         The affidavits state that the Columbia clinic was forced to cancel medication abortion procedures scheduled after the regulation went into effect. However, there is no evidence in the Record regarding the number of women who have sought medication abortions at the Columbia clinic, nor is there any evidence of how many of those women who desired a medication abortion have foregone an abortion instead of obtaining one elsewhere.

         II. ...


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